GOYAL, J. - (1.) THIS revision under Section 115 C. P. C. has been preferred by the defendants.
(2.) THE plaintiff-non-petitioner Smt. Nirmala Kumari filed a suit on 23. 11. 1992 against the defendant Chagan Lal for possession and mesne profits with the averments that the suit property belongs to the plaintiff and is in her possession. In her absence when the plaintiff was with her husband at Delhi the defendant raised new construction over land measuring 46' x 30' in the year 1982. When the plaintiff came to know he asked the defendant to vacate the same. THE defendant assured to vacate but did not do so and in November, 1992 declined to hand over the possession. Hence the suit. The defendant Sh. Chagan Lal appeared in the Trial Court on 25. 2. 1993. Adjournments were sought for filing written statement. On 14. 10. 1993 none appeared for the defendant, hence the court ordered to proceed exparte. Thereafter exparte decree was passed on 18. 5. 1996. An application under Order 9 Rule 13 C. P. C. was filed on 31. 3. 1998 by the defendant with the averments that his counsel Sh. Deen Mohd. instructed him to appear as and when necessary and upon information given by him. The defendant is a labourer and he was never informed by his counsel and he came to know of this judgment 10 to 12 days prior to filing this application when sale-ameen came for delivery of possession. The plaintiff contested this application by filing reply. The Trial Court examined the defendant and one Mangal Singh on behalf of the plaintiff. During the pendency of this application the defendant Chagan Lal expired, hence his legal representatives were brought on record. Learned Civil Judge (Junior Division) No. 1, Alwar vide order dated 9. 10. 2003 dismissed this application. Civil Misc. Appeal No. 89/2003 preferred by Geeta Devi wife of the defendant late Sh. Chagan Lal was also dismissed by learned Additional District Judge No. 1, Alwar vide order dated 31. 1. 2004. I have heard learned counsel for the parties. Order 9 Rule 13 C. P. C. provides that an exparte decree may be set aside if the court is satisfied that the summons was not duly served or the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. Article 123 of the Limitation Act, 1963 provides limitation of thirty days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. In the instant case, it is not in dispute that the defendant on service of the summons appeared in the Trial Court on 25. 2. 1993. Four adjournments were granted for filing written statement. Thereafter, on 5. 10. 1993 the defendant engaged another counsel Sh. Deen Mohd. He also sought two adjournments for filing the written statement. On 14. 10. 1993 neither the defendant nor his counsel appeared. The Trial Court ordered to proceed exparte. Two witnesses were examined on behalf of the plaintiff. Exparte decree was passed on 18. 5. 1996 and this application for setting aside the judgment and decree was filed on 31. 3. 1998. Thus, the two courts below rightly held that this application was filed beyond the prescribed period of limitation of thirty days from the date of the decree.
(3.) NEXT question for consideration arises is as to whether the defendant satisfied the court that he was prevented by any sufficient cause from appearing in the court on 14. 10. 1993-the date fixed for filing written statement. The two courts below having considered the statement of the defendant and the witnesses examined on behalf of the plaintiff arrived at concurrent finding that no reason has been assigned for such an inordinate delay and the defendant himself was present in the court on 6. 9. 1993. Learned counsel for the petitioners contended that the defendant Chagan Lal was uneducated person and he was asked by his counsel not to appear on each and every date and to appear only when he was informed by his counsel but his counsel never informed him; that the petitioners were and are not in a position to file affidavit of their counsel Sh. Deen Mohd. and the dispute relates to immovable property and the court should give an opportunity to them to plead their case and the court should adopt a liberal approach. He placed reliance upon Collector, Land Acquisition, Anantnag & Another vs. Mst. Katiji & Others (1 ). The Hon'ble Supreme Court condoned the delay of four days in filing the appeal and it was held that the court should adopt liberal approach though the court should give reasons for adopting such approach. Reliance was placed upon Trilok Chand Saini vs. The State & Others (2), wherein the Hon'ble Division Bench of this Court held that length of delay in filing the appeal is no ground and the acceptability of explanation of delay is the only criterion. Per contra, learned counsel for the non- petitioner contended that there is no ground to interfere with the concurrent finding of the two courts below; that order to proceed exparte was passed on 14. 10. 1993; that the exparte decree was passed on 18. 5. 1996 and this application was filed on 31. 3. 1998 and there is no explanation for such an inordinate delay. He placed reliance upon Rawal Das vs. Vasudevi (3), wherein it was held that the provisions of Article 123 of the Limitation Act would apply only when the defendant did not appear at all and if the defendant appears but subsequently absents himself and a decree is passed exparte, time shall be reckoned from the date of the decree. In Gouri Shankar & Ors. vs. Satya Narain (4), it was held that when the plea of assurance given by the counsel is not accepted and the defendant is found guilty of laches and the application under Order 9 Rule 13 C. P. C. was filed almost after more than six months from the date of the decree, such application cannot be allowed. I have considered the rival submissions. The two courts below have taken into consideration the material evidence on record. The defendant appeared in the instant case. A number of adjournments were granted at the request made by his counsel for filing the written statement. The plea of assurance given by his counsel was not found reliable by the two courts below and I find no reason to set aside such concurrent finding of fact. Both the courts below rightly held that the defendant failed to explain inordinate delay in filing the application under Order 9 Rule 13 C. P. C. No such case is made out that the two courts below exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested or have acted upon illegally or with material irregularity so as to warrant interference by this Court in revision under Section 115 C. P. C. Consequently, this revision petition along with stay application is dismissed. Record of the Trial Court be returned. . ;